United States District Court, M.D. Tennessee, Nashville Division
Honorable Denise Hood, Chief District Judge
REPORT AND RECOMMENDATION
BARBARA D. HOLMES United States Magistrate Judge
Orders entered June 30, 2016 (Docket Entry No. 4), and March
30, 2017 (Docket Entry No. 44), the Court referred this
action to the Magistrate Judge, pursuant to 28 U.S.C.
§§ 636(b)(1)(A) and (B), for consideration of all
pretrial matters. For the reasons set out below, the
undersigned Magistrate Judge respectfully recommends that
this action be dismissed with prejudice because of
Plaintiff's failure to prosecute the action.
Anderson (“Plaintiff”) filed this lawsuit on June
16, 2016, seeking injunctive relief under the Americans with
Disabilities Act, 42 U.S.C. §§ 12181, et
seq., against two defendants. When the lawsuit was
filed, Plaintiff was represented by counsel, who subsequently
appeared at an initial case management conference held on
September 26, 2016, and filed an amended complaint.
See Docket Entry No. 21. However, counsel for
Plaintiff moved to withdraw from the case on January 19,
2017, citing irreconcilable differences with Plaintiff over
issues arising out of the management and direction of the
litigation. See Docket Entry No. 37. By Order
entered on January 26, 2017, Chief Judge Sharp permitted
counsel to withdraw and granted Plaintiff a thirty (30) day
period within which to retain substitute counsel or to notify
the Court of his intention to proceed pro se. See
Docket Entry No. 38. Separately, the undersigned Magistrate
Judge set a case management conference on March 8, 2017,
directed Plaintiff to appear at the conference through
counsel or pro se, and directed the parties to both
confer about resolution of the case and to file an updated
proposed case management order. See Order entered
January 30, 2017 (Docket Entry No. 40). In that Order
Plaintiff was specifically advised that failure to comply
with the Court's instructions could result in the
imposition of sanctions. Id.
failed to comply with the directive of the Court to either
find substitute counsel or notify the Court of his intention
to proceed pro se. Plaintiff also failed to appear
at the March 8, 2017, case management conference or otherwise
contact the Court about the conference. At the case
management conference, counsel for Defendant Fattoush
Café indicated that it would be filing a motion to
dismiss the action, and the Court provided Plaintiff with a
21 day period from the date of service of any motion to
dismiss to file a response. See Order entered March
9, 2017 (Docket Entry No. 42). Plaintiff was specifically
notified that his failure to timely respond would indicate
that there is no opposition to the motion and the case would
be dismissed. Id. On March 15, 2017, Defendant
Fattoush Café filed a motion to dismiss the action
under Rule 41 of the Federal Rules of Civil Procedure.
See Docket Entry No. 43. To-date, Plaintiff has not
responded to the motion.
16(f)(1) of the Federal Rules of Civil Procedure provides
that “on motion or on its own, the Court may issue any
just orders, including those authorized by Rule
37(b)(2)(A)(ii)-(vii), if a party . . . (C) fails to obey a
scheduling or other pretrial order.” Pursuant to Rule
37(b)(2)(A)(v), the Court may dismiss an action as a
sanction. In addition, it is well-settled that federal trial
courts have the inherent power to manage their own dockets.
Link v. Wabash R.R., 370 U.S. 626, 82 S.Ct. 1386, 8
L.Ed.2d 734 (1961). Rule 41(b) of the Federal Rules of Civil
Procedure further permits the Court to dismiss an action upon
a showing of a clear record of delay, contumacious conduct,
or failure to prosecute by a plaintiff. See Carter v.
City of Memphis, Tennessee, 636 F.2d 159, 161 (6th Cir.
of this action pursuant to Rule 16(f)(1) and Rule 41(b) is
warranted because of Plaintiff's failure to comply with
the specific directive from the Court to file a notice
regarding the status of his representation, his failure to
appear at the March 8 case management conference, his failure
to respond to the pending motion to dismiss, and his general
failure to actively litigate the lawsuit once his former
counsel withdrew from the action. Dismissal with prejudice is
appropriate in light of the impasse in further proceedings in
the action caused by Plaintiff's failure to prosecute,
his apparent disinterest in the action, and his failure to
respond to a pending motion seeking dismissal of the action.
Plaintiff was specifically warned on several occasions about
the consequences of his failure to comply with the directives
of the Court and his failure to act. Neither the Court nor
Defendants should be required to expend any further resources
in the action given Plaintiff's failure to prosecute, and
a sanction lesser than dismissal is not warranted.
the undersigned Magistrate Judge respectfully RECOMMENDS that
the motion to dismiss of Defendant Fattoush Café
(Docket Entry No. 43) be GRANTED, and that this action be
DISMISSED with prejudice in its entirety pursuant to Rule
16(f)(1) and Rule 41(b) of the Federal Rules of Civil
OBJECTIONS to this Report and Recommendation must be filed
with the Clerk of Court within fourteen (14) days of receipt
of this notice and must state with particularity the specific
portions of this Report and Recommendation to which objection
is made. Failure to file written objections within the
specified time can be deemed a waiver of the right to appeal
the District Court's Order regarding the Report and
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106
S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v.
Walters, 638 F.2d 947 (6th Cir. 1981).